of 911 call made "almost immediately after" drug store shooting).
The second call placed by Gajewski was admittedly 16 minutes after the completion of his first call. This call, however, was also made without any motivation for fabrication on Gajewski's part. Indeed, his recitation of the event was consistent with his first call and with the other testimony in the case. See United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991) (admission of statements under Rule 803(1) "buttressed by their intrinsic reliability"). Under these circumstances, the interlude between the shooting and Gajewski's second call falls sufficiently within the time period permitted by Rule 803(1). See Blakey, 607 F.2d at 685-86 (applying rule where interval was potentially 23 minutes); United States v. Obayagbona, 627 F. Supp. 329, (E.D.N.Y. 1985) (Weinstein, J.) (applying rule where interval was 14 minutes and 25 seconds); cf. Hilyer v. Howat Concrete Co., Inc., 188 U.S. App. D.C. 180, 578 F.2d 422, 426 n.7 (D.C.Cir. 1978) (statement made between 15 and 45 minutes after event inadmissible under exception). The requirements of Rule 803(1) were therefore satisfied by each of the three telephone recordings in this case.
Moreover, even if the calls were not significantly contemporaneous to meet the present sense exception to the hearsay rule, they were admissible as "excited utterances." See Fed. R. Evid. Rule 803(2). Pursuant to Rule 803(2), exited utterances are defined as those statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
As the Advisory Committee Notes indicate, the present sense impression exception and the excited utterance exception "overlap, though based on somewhat different theories." Fed. R. Evid. 803 Advisory Committee Note. The theory behind the excited utterance exception is that "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." Id. The two conditions for the application of this exception are that there has been a startling event and that the offered statements were made during the period of excitement, and in reaction to that event. See Obayagbona, 627 F. Supp. at 338; 4 Louisell & Miller, § 439 at 494-95.
It is clear that the recordings in the instant case satisfy both requirements of the excited utterance exception. A shooting, even in this day and age, is a startling event. Moreover, the sheer panic in the voices of Gajewski and Aguera, heard on the recordings, is proof that the calls were made while the declarants remained under the excitement of the situation. See Obayagbona, 627 F. Supp. at 338 (court's "determination of excitement [was] facilitated by [a] recording").
Nor are there any reasons of policy here, to exclude this evidence. The memory of the witnesses was ensured by the temporal proximity of the calls to the time of the shooting. The ability of the witnesses to communicate what they thought they observed was evident from their straightforward and detailed statements describing the shooter. Moreover, because the 911 calls were recorded, there is absolutely no doubt that the statements at issue in this case were actually made. See Blakey, 607 F.2d at 785. The only question arguably raised by the testimony of Gajewski and Aguera is whether these men accurately perceived what they described to the operators. Because both witnesses testified at trial, the defendant had ample opportunity on cross examination to explore any shortcomings with their perceptions.
The fact that the statements are not barred by the hearsay rule, however, does not foreclose the possibility that they are inadmissible on some other ground. Accordingly, defendant argued that the 911 tape recordings were more prejudicial than probative, and therefore should have been excluded pursuant to Rule 403. See Fed. R. Evid. 403. In support of his claim of prejudice, defendant argued that the 911 recordings would be "cumulative" of the in-court testimony, and "improper bolstering" the witnesses, leading the jury to believe that the accounts offered on the excerpted 911 tapes were the only eyewitness accounts of de Dios's murder. See Defendant's Memorandum of Law in Opposition to the Government's Motions In Limine at 19.
These arguments are without merit. In the context of the prosecution's case, which consisted of primarily the testimony of three admitted co-conspirators to the murder, the observations of the shooting made by Gajewski and Aguera were extremely probative. These two men were disinterested witnesses who both significantly corroborated the accounts of the (admittedly self-interested) cooperators. Thus the testimony of the eyewitnesses was critical. The playing of the 911 tapes was not "bolstering" or "cumulative." On the contrary, the statements contained therein were the most probative evidence available of what those witnesses observed on March 11, 1992 -- two years prior to their in-court testimony. Indeed, in this respect the statements were closely analogous to prior eyewitness identifications, see Fed. R. Evid. 801(d)(1)(C), that are not deemed to be hearsay because they are made "'relatively soon after the offense, while the incident is still reasonably fresh in the witness' mind' and 'before his recollection has been dimmed by the passage of time." 4 Louisell & Mueller, § 421 at 205 (quoting congressional reports on Rule 801(d)(1)(C)).
III. Velasco's Statements
In explaining how it was that he acquired the contract to murder de Dios, Benitez testified that his friend Velasco offered him the job after the two men met by chance at a pool hall in Queens. See Tr. Vol IV at 102-103. Benitez further testified that while standing in the pool hall with Velasco, after the men had already agreed on the terms of their contract, another individual approached Velasco expressing a desire to "do the job." Velasco answered that man, according to Benitez, by rejecting his offer and stating that the job had been given to Benitez. See Tr. Vol IV at 103, 182.
After the testimony of Benitez, the defendant's attorney sought to introduce in evidence statements allegedly made by Velasco to a confidential informant ("CI"). In the first of these statements, Velasco is alleged to have said that the person who actually murdered de Dios is back in Colombia. See Tr. Vol. IV at 193-95 (colloquy). Velasco's statement that the shooter of de Dios was back in Colombia, defendant argued, was inconsistent with the remark that was attributed to him in the pool hall, when, according to Benitez, Velasco told a passerby that he had given the murder job to Benitez. The statement regarding the shooter was therefore admissible, argued counsel, for impeachment purposes pursuant to Rule 806. See Fed. R. Evid. 806 (credibility of hearsay declarant may be attacked as if declarant had testified as a witness).
Rule 806 provides, in pertinent part, that "when a hearsay statement, or a statement defined in Rule 801(d)(2) . . . (E), has been admitted in evidence, the credibility of the declarant may be attacked . . . by any evidence which would be admissible for those purposes if declarant had testified as a witness." Fed. R. Evid. 806. As the Advisory Committee notes make clear, the theory of the rule is that because a hearsay declarant "is in effect a witness," his or her credibility "should in fairness be subject to impeachment and support" as if the declarant had actually testified at the proceeding in question. See Fed. R. Evid. 806 Advisory Committee Note. A party is allowed no greater latitude in impeaching a hearsay declarant pursuant to Rule 806, than the party would otherwise be permitted by the rules of evidence in impeaching a witness that testified at trial. See United States v. Finley, 934 F.2d 837, 839 (7th Cir. 1991) ("Rule 806 extends the privilege of impeaching the declarant of a hearsay statement but does not obliterate the rules of evidence that govern how impeachment is to proceed.").
Although the statement attributed to Velasco at trial qualifies as one made by a declarant within the meaning of Rule 806,
the additional statement offered by defendant, ostensibly for impeachment purposes, was inadmissible for two reasons. First, the statement proffered by defendant was simply not inconsistent with Velasco's prior statement. According to Benitez's testimony, Velasco rebuffed a prospective contract killer by telling him, "I gave the contract to [Benitez]." Defendant would impeach that statement of Velasco's with his subsequent statement to the CI, to the effect that "the shooter of de Dios is Colombia." Those two statements are not contradictory. Velasco's awarding the murder contract to Benitez is distinct from the independent event of the killing. Indeed, the prosecutor's theory of the case assumes that Velasco gave the contract to Benitez, but that defendant Velez carried out the shooting. While it is true that statements offered for impeachment purposes "'need not be diametrically opposed,'" United States v. Agajanian, 852 F.2d 56, 58 (2d Cir. 1988) (citation omitted), before admitting such evidence the trial court "must be persuaded that the statements are indeed inconsistent." United States v. Hale, 422 U.S. 171, 176, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975). Where inconsistency is not demonstrated, the putative impeachment evidence must be rejected. Id.; see also United States v. Leonardi, 623 F.2d 746, 756-57 (2d Cir.), cert. denied, 447 U.S. 928, 65 L. Ed. 2d 1123, 100 S. Ct. 3027 (1980).
Secondly, even if Velasco's latter statement was inconsistent with his earlier one, it was not admitted because the probative value of the latter statement was substantially outweighed by its prejudicial effect. Although Rule 806 "does not set forth a test of probative value," United States v. Friedman, 854 F.2d 535, 570 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989), it remains the duty of the trial court to weigh all evidence offered pursuant to Rule 806 by the familiar principles of relevance and the probative-prejudice balancing test. See Vaughn v. Willis, 853 F.2d 1372, 1379 (7th Cir. 1988).
While defendant's attorney purported to offer Velasco's statement that the shooter was in Colombia for the purpose of impeaching the statement of Velasco that he gave the murder job to Benitez, see Tr. Vol. IV at 199, it was obvious that counsel really sought to admit the statement solely for its truth -- that is, that the shooter was in Colombia and, therefore, was not the defendant. The defendant did not seriously challenge the fact that Velasco gave the murder job to Benitez, and the evidence on this score was overwhelming. Indeed, in her opening statement, defendant's counsel stated, referring to Benitez and Salazar, "they brought my client there [to the scene of the murder] for a reason, members of the jury. And that reason was so that they'd have someone to point their finger at." Tr. Vol. I at 50. Under these circumstances, it was clear that the purpose of the proffered evidence was not to impeach the credibility of Velasco's statement. Rather, as I stated to defendant's counsel at trial:
You want the jury to believe that the person who pulled the trigger left the United States, and therefore it's not your client. That's the real use that you want to make of it. You want it to be used for its truth, not viewed realistically to impeach the credibility of the statement that [Velasco] hired [Benitez] to do the job. . . .
Tr. Vol. V at 75. The statement was thus not offered for a proper impeachment purpose. See United States v. Graham, 858 F.2d 986, 990 n.5 (5th Cir. 1988) ("The hallmark of an inconsistent statement offered to impeach a witness's testimony is that the statement . . . is not offered for the truth of the matter asserted . . . rather, it is offered only to establish that the witness has said both "x" and "not x" and is therefore unreliable."), cert. denied, 489 U.S. 1020, 103 L. Ed. 2d 201, 109 S. Ct. 1140 (1989).
There were other statements allegedly made by Velasco, which defendant sought to admit in evidence, to the effect that Velasco himself killed de Dios. The defendant first argued that these statements were admissible for their truth, even absent Velasco's in-court testimony, pursuant to Fed. R. Evid. 804(b)(3) (hearsay exception for statement against interest of unavailable declarant). See Tr. Vol. IV at 195-96. In the alternative, defendant contended that the statements were admissible pursuant to the "catch-all" exception to the rule against hearsay, found in Fed. R. Evid. 803(24). See Tr. Vol. VIII at 6. Both of these arguments were unavailing.
Velasco's statements were inadmissible under Rule 804(b)(3) because Velasco was not "unavailable" as that term is expressly defined in the Federal Rules of Evidence. See Fed. R. Evid. 804(a)(1)-(5). There is no dispute here that Velasco was in custody at the time of the trial, that he was willing to testify and that the United States Attorney offered to arrange his appearance if the defendant so desired. See Tr. Vol. IV at 188.
Conceding that Velasco was thus "available" in body, defendant's attorney argued nonetheless that he was unavailable in spirit:
It seems to me that the court, without reading out the -- the requirement of unavailability, could find that [Velasco is] unavailable to me, not in a kind of practical sense, but in a theoretical sense. He's a witness I can't cross-examine. I can't interview before I put him on the stand.
Tr. Vol. VIII at 67. These statements by defense counsel, even if true, overstate the disadvantages she faced and the factors at play that would have permitted her to get Velasco's statements before the jury. While the United States Attorney did not call him as a witness, the defendant knew that Velasco was cooperating with the government and that, if called as a witness for the defense, Velasco would contradict the hearsay statements defendant sought to offer. Yet the hearsay statements defendant wished to use for impeachment were tape recorded. Accordingly, Velasco would have been in no position to deny making the earlier statements, and they would have been admissible to impeach the contrary testimony he presumably would have given regarding his role in the de Dios murder.
Thus, while defendant chose not to call Velasco for strategic reasons, he was not "unavailable" under Fed. R. Evid. 804(a).
Velasco's statements, as proffered by defendant, were also inadmissible because they failed to meet the corroboration requirement of 804(b)(3). See Fed. R. Evid. 804(b)(3) ("A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."). The Court of Appeals has held that this requirement demands both "corroboration of the declarant's trustworthiness, focusing on the declarant's reliability when the statement was made" and "corroboration of the declarant's statement, focusing on whether the evidence in the record supports or contradicts the statement." United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484 U.S. 966, 98 L. Ed. 2d 398, 108 S. Ct. 458 (1987).
Neither the circumstances in which the statements were made, nor the substance of the statements, in light of the evidence in the record, satisfied the corroboration predicate of the rule. As was evident from the testimony of Benitez, see Tr. Vol. IV at 104, statements by individuals about their criminal accomplishments are often made untruthfully, for an intended effect on others. Indeed, the very statements in question here were uttered by Velasco in the context of a contemplated sale of illegal contraband. See Tr. Vol. VII at 7-8.
The overwhelming evidence in this case that defendant murdered Manuel de Dios also contradicts the several out-of-context statements by Velasco to the effect that he murdered de Dios. The defendant, in his post-arrest statement to police officers, admitted that he accompanied Benitez and Salazar to the scene of the murder. While he denied killing de Dios, the explanation he gave for his presence was implausible. Moreover, the descriptions given by the eyewitnesses Gajewski and Aguera, as recorded on their 911 telephone calls, matched the physical characteristics of the defendant, and not those of Velasco.
While corroborating the account of the murder conspiracy given by defendant's accomplices, this evidence strongly contradicted the admission attributed to Velasco.
Nor are Velasco's statements admissible pursuant to the "catch-all" exceptions to the hearsay rule. See Fed. R. Evid. 803(24) and 804(b)(5). As the legislative history of the rules makes clear, these residual hearsay exceptions were designed to facilitate the admission of hearsay "in situations unanticipated by the other exceptions, but involving equal guarantees of trustworthiness." Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue, 59 Tul. L. Rev. 335, 340 (1984); see also Fed. R. Evid. 803(24) Advisory Committee Note. Indeed, it was intended by Congress "that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances." S. Rep. No. 93-1277, 93d Cong., 2d Sess. 18-20 (1974); see also Parsons v. Honeywell, 929 F.2d 901, 907 (2d Cir. 1991).
The statements proffered by defendant were not "unanticipated by the other exceptions" specifically enumerated in Rules 803 and 804. On the contrary, Velasco's statements are declarations against penal interest that are specifically provided for in Rule 804. Nor do they come within the residual exception in Rule 804(5), because that exception, like the specific exceptions enumerated in Rule 804, is conditioned on the unavailability of the declarant.
Perhaps recognizing the impossibility of meeting the requirements of the residual hearsay exception contained in Rule 804(5), the defendant sought to bring the statement within the catch-all exception of Rule 803(24) which may be invoked even if the declarant is available. The residual exception in 803(24), if applied as defendant suggests, would simply override the restrictions Congress has placed on the admissibility of declarations against penal interest. Because such statements are viewed with suspicion, Congress determined that statements against penal interest should only be admissible when necessitated by the unavailability of the declarant.
The reasons for the [declaration against penal interest] exception are necessity and trustworthiness. The unavailability of the declarant's testimony establishes a kind of need to accent his out-of-court statement. And the against-interest element assures a degree of trustworthiness.